Smith v. CSX Transportation, Inc.

703 S.E.2d 671, 306 Ga. App. 897, 2010 Fulton County D. Rep. 3530, 2010 Ga. App. LEXIS 991

• Court: Court of Appeals of Georgia
• Decided: October 25, 2010
• Docket: A10A1289
• Status: Published

Opinions

Ellington, Judge.

After Larry Smith slipped and fell on stairs on property owned by CSX Transportation, Inc., he brought this action against CSX in the Superior Court of Gwinnett County under the Federal Employers’ Liability Act (“FELA”).¹ A jury returned a verdict in favor of CSX. Following the denial of his motion for a new trial, Smith appeals, contending the trial court erred in admitting evidence that, at the time he fell, he was “out of service.” In addition, he contends the trial court erred in failing to instruct the jury regarding a federal regulation that requires slip-resistant stair treads and nonslip nos-ings² in the workplace. For the reasons explained below, we reverse.

The evidence shows that Smith was employed as a CSX conductor on April 6, 2004, when he went to the Terminal Administration Building in Walbridge, Ohio to attend a mandatory union safety meeting in his capacity as a local chairman. Smith took interior stairs to reach the second-floor meeting room. Smith’s foot slipped as he stepped on a stair tread that had a small puddle of liquid soap on it, and his left knee hit the edge of the step. One year later, Smith had knee surgery.

Smith sued CSX for damages pursuant to FELA, which provides a federal tort remedy for railroad employees who are injured on the job.³ FELA protects an employee who works for a railroad engaged in interstate commerce and whose duties affect or further the employer’s interstate transportation business whenever that employee is working within the scope of his or her employment.⁴ Activities within the scope of employment include those that are necessarily incidental to the employment, even if the employee is off duty, but not those undertaken for a private purpose and having no causal relationship with the employment.⁵ In order to recover against CSX under FELA, Smith was required to prove, inter alia, that he was protected by FELA at the time of injury; that CSX was negligent in that it breached its duty to exercise reasonable care under the circumstances to provide Smith a reasonably safe place in which to work; and that CSX’s negligence played some part in Smith’s injury.⁶

Before trial, Smith moved in limine to exclude any evidence that CSX had disciplined him before the April 2004 incident, arguing that such evidence of bad character was irrelevant to the issue of whether FELA applies to his claim. In particular, Smith sought to exclude any evidence that on April 6, several hours before he slipped on the stairs, two supervisors observed him violate a safety rule and told him that he was “out of service.” The trial court granted the motion.

. Notwithstanding this ruling, CSX argued, in its opening statement, that

Smith should not have been there that morning. He had been taken out of service just hours before ... by company officials who told him, “You’re out of service,” which he knows means you’re not allowed to come on company property. So he should not have even been there.

On cross-examination, CSX’s counsel asked Smith whether being out of service means that the employee cannot go onto CSX property without permission. Smith responded that it does not mean that. Counsel then asked whether it was Smith’s contention that he was not taken out of service on April 6. Smith affirmatively testified that “[he] was not taken out of service” that morning. CSX’s counsel then asked Smith whether, hours before the safety meeting, two supervisors, Jim Horner and Justin Forro, told him that they had seen him dismount moving equipment, a safety rule violation. Smith admitted that they had, but testified that they did not tell him that he was out of service. In addition, he testified that they lacked the authority to take him out of service.

At the beginning of CSX’s case-in-chief, Smith moved to prohibit CSX from presenting at trial the deposition testimony of Horner and Forro. The trial court denied the motion and allowed the testimony. Employing a general verdict form, the jury found in favor of CSX.

1. Smith contends that the question of whether, at the time of injury, an employee was working in the course of his employment in interstate commerce is a question of law for the court. Further, he contends that, even if he had been taken out of service on the day he slipped, the evidence established, as a matter of law, that he was furthering CSX’s business in interstate commerce by attending the mandatory safety meeting as a local union chairman and, therefore, he is entitled to the protections of FELA. As a result, he contends, evidence that he had been taken out of service was irrelevant to any issue to be decided by the jury, and the trial court erred in admitting it. Smith contends that evidence that he committed a serious safety rule violation reflected poorly on his character and credibility and, therefore, that the trial court’s error prejudiced him.⁷ “We review a trial court’s decisions on the admissibility of evidence under an abuse of discretion standard.” (Citation and punctuation omitted.) Fuller v. Flash Foods, 298 Ga. App. 217, 220 (2) (679 SE2d 775) (2009).

As noted above, the trial court granted Smith’s motion in limine, ruling inadmissible any evidence that CSX had disciplined Smith, including evidence that hours before he slipped on the stairs on April 6, 2004, Horner and Forro told him that he was “out of service” because they had observed him violating a safety rule. When CSX’s counsel asked Smith whether he had been taken out of service that morning, however, Smith’s counsel delayed his objection to that line of questioning until after Smith affirmatively testified that Horner and Forro did not tell him that he was out of service on April 6. Under Georgia law, “[a] witness may be impeached by disproving the facts testified to by him [or her].” OCGA § 24-9-82. Although a witness may not be impeached by disproving facts that are “wholly immaterial” to the matters at issue in the case, a witness may be impeached on a collateral issue which is “indirectly material” to the matters at issue. (Citation and punctuation omitted.) Barngrover v. Hins, 289 Ga. App. 410, 412 (1) (657 SE2d 14) (2008).

We conclude that the circumstances surrounding Smith’s dispute with Horner and Forro a few hours before Smith went to the administration building to attend the safety meeting were at least indirectly material to matters at issue in this case, including whether Smith was acting within the scope of his employment when he fell. Although the favorable ruling on Smith’s motion in limine did not require him to object to evidence encompassed by his motion,⁸ we conclude that, once Smith submitted to questioning on the issue without seeking to enforce the limine ruling, he opened the door to being impeached with evidence that tended to disprove his testimony. Accordingly, the trial court did not abuse its discretion in allowing CSX to cross-examine Smith on the issue and in admitting the testimony of Horner and Forro for purposes of disproving certain facts to which Smith had testified. Morris v. State Farm &c. Ins. Co., 203 Ga. App. 839, 842 (9) (418 SE2d 119) (1992); Swift & Co. v. Lawson, 95 Ga. App. 35, 54-57 (6) (97 SE2d 168) (1957).

2. Smith contends the trial court erred in failing to instruct the jury, as he requested, regarding a regulation issued by the federal Occupational Safety and Health Administration (“OSHA”) that requires that stair treads be reasonably slip-resistant and that the nosings have a nonslip finish.⁹ “A requested charge should be given where it has been raised by the evidence, embraces a correct and complete principle of law, has not been substantially included in the general instructions given, and is specifically adjusted to the evidence.” (Citation and punctuation omitted.) State Farm v. Nelson, 296 Ga. App. 47, 49 (2) (673 SE2d 588) (2009).¹⁰

It is the duty of the trial court to charge the jury on the law applicable to the issues where there is any evidence on which to predicate the instructions. A refusal to give a [requested] charge is error if the charge is a correct statement of the law and applicable to the issues involved.

(Citations and punctuation omitted.) Blankenship v. West Ga. Plumbing Supply, 213 Ga. App. 275, 277 (444 SE2d 596) (1994).

Generally, evidence of noncompliance with OSHA regulations is admissible as evidence of an employer’s negligence.¹¹ In this case, Smith presented evidence that the nosings on the stairs in the CSX administration building where he fell were not of a nonslip finish¹² and that, together with the soap spill, the nosings’ finish caused his fall.¹³ The trial court refused to give the requested charge, however, based on its conclusion that 29 CFR § 1910.24 does not apply to the type of building in which Smith fell, that is, an office building. This was error. OSHA’s general standards, which are set out in 29 CFR Part 1910, apply to any workplace, unless specifically excepted. 29 CFR § 1910.5 (a). See also 29 CFR § 1910.5 (c) (2). The jury instruction Smith requested is drawn from 29 CFR § 1910.24, which “contains specifications for the safe design and construction of fixed general industrial stairs.” 29 CFR § 1910.24 (a). In the context of 29 CFR Part 1910, the modifier “general industry” or “general industrial” plainly denotes that the standard has general application to any workplace and is not limited to certain industries that are subject to additional, particularized standards.¹⁴ Subpart D, which provides standards for “walking-working surfaces,” is such a general standard. Further, the office building in which Smith fell does not fall under an exception. See 29 CFR § 1910.5 (b). It follows that the standards for the construction of stairs provided in 29 CFR § 1910.24 apply to the building in which Smith fell.

Because the evidence presented issues for the jury to resolve regarding whether CSX violated 29 CFR § 1910.24 (f) and, in so doing, negligently caused Smith’s injuries, and because the principles were not otherwise covered in the trial court’s charge, the trial court erred in refusing Smith’s request to instruct the jury on the requirements of that regulation in relation to their consideration of Smith’s FELA claim. Blankenship v. West Ga. Plumbing Supply, 213 Ga. App. at 277 (The trial court’s failure to give a requested charge on a critical legal theory of recovery constituted substantial error and was harmful as a matter of law.). See Robertson v. Burlington Northern R. Co., 32 F3d 408, 410-411 (I) (9th Cir. 1994) (the trial court properly admitted into evidence an OSHA noise-level regulation as some evidence of the applicable standard of care in a FELA action and instructed the jury to consider the regulation in relation to all other evidence in the case); Albrecht v. Baltimore &c. R. Co., 808 F2d 329, 332 (4th Cir. 1987) (the trial court correctly charged the jury regarding OSHA regulations that the employee alleged the employer had violated, which the jury could consider as some evidence of negligence).

Judgment reversed.

Miller, C. J., and Phipps, P J., concur. Barnes, P. J., concurs and concurs specially. Andrews, P. J., Johnson and Doyle, JJ., dissent.

1 45 USC § 51 et seq.

2 A nosing is “[t]hat portion of a tread projecting beyond the face of the riser immediately below.” 29 CFR § 1910.21 (b) (2).

3 Kossman v. Northeast Illinois Regional Commuter R., 211 F3d 1031, 1035 (III) (A) (7th Cir. 2000). See Neal v. CSX Transp., 213 Ga. App. 707, 708 (1) (445 SE2d 766) (1994) (Because CSX maintains its registered office and registered agent for service in Gwinnett County, venue of a state court FELA action is proper there.).

4 Hardyman v. Norfolk &c. R. Co., 243 F3d 255, 258-259 (II) (6th Cir. 2001); Moore v. Chesapeake &c. R. Co., 649 F2d 1004, 1008 (2) (4th Cir. 1981); Fowler v. Seaboard Coastline R. Co., 638 F2d 17, 20 (5th Cir. 1981).

5 Rostocki v. Consolidated Rail Corp., 19 F3d 104, 106 (2d Cir. 1994); Baker v. Baltimore &c. R. Co., 502 F2d 638, 642 (6th Cir. 1974). See Fowler v. Seaboard Coastline R. Co., 638 F2d at 20 (“[T]he proper test for scope of employment in an FELA case [is] whether the act was one which the employer might reasonably have foreseen and which the employee might reasonably have thought necessary in the interest of or in the benefit of the employer.”).

6 Hardyman v. Norfolk &c. R. Co., 243 F3d at 258-259 (II); Kossman v. Northeast Illinois Regional Commuter R., 211 F3d at 1035-1036 (III) (A).

7 Although we have concluded that Smith is entitled to a new trial for the reasons explained in Division 2, infra, this evidentiary issue may recur and, therefore, we address this claim of error here.

8 See Reno v. Reno, 249 Ga. 855, 855-856 (1) (295 SE2d 94) (1982) (Where a trial court grants a motion in limine to exclude certain evidence, and the nonmovant violates the order by nevertheless offering evidence encompassed by the motion in limine, the movant need not object in order to preserve the issue for appellate review.); Scott v. Chapman, 203 Ga. App. 58, 59 (1) (416 SE2d 111) (1992) (accord).

9 In full, Smith requested the following charge:

Plaintiff contends the Defendant Railroad did not comply with OSHA 29 CPR § 1910.24 (f), which demands,

Stair treads. All treads shall be reasonably slip-resistant and the nosings shall be of nonslip finish. Welded bar grating treads without nosings are acceptable providing the leading edge can be readily identified by personnel descending the stairway and provided the tread is serrated or is of definite nonslip design. Rise height and tread width shall be uniform throughout any flight of stairs including any foundation structure used as one or more treads of the stairs.

I charge you that... if you believe from the evidence that the Defendant Railroad violated this regulation, then you may consider this violation as evidence of negligence on the part of the Defendant Railroad and a failure of the Defendant Railroad to provide a reasonably safe place to work.

10 See Smoky, Inc. v. McCray, 196 Ga. App. 650, 655-656 (5) (396 SE2d 794) (1990) (Although “it is not error for the trial court to refuse to give a requested charge in the precise language requested where the principles embodied therein are substantially covered by the charge!,)” the issue of whether a requested charge is substantially covered by a standardized charge of the general principles involved should be evaluated “from the perspective of the average juror, unschooled in law and hence unable to grasp all the shades and nuances which the law may present in an individual case solely from an abbreviated discussion of the ‘general principles’ involved!, because] it is the jury, not the trial court or the appellate courts, that applies the law[.]”) (citations, punctuation and emphasis omitted).

11 Dupree v. Keller Indus., 199 Ga. App. 138, 141 (1) (404 SE2d 291) (1991) (“OSHA regulations are admissible not merely as standards of performance, but as evidence of legal duty, violation of which may give a cause of action under OCGA § 51-1-6.”) (citation and punctuation omitted); Cardin v. Telfair Acres of Lowndes County, 195 Ga. App. 449, 450 (2) (393 SE2d 731) (1990) (accord); Ries v. Nat. R. Passenger Corp., 960 F2d 1156, 1165 (III) (3d Cir. 1992) (Although “OSHA is not a safety statute under the FELA, [and, therefore,] a violation of an OSHA regulation could not constitute negligence per se and bar contributory negligence[, . . . the defendant employer’s] violation of [an] OSHA regulation was properly admissible as evidence of [the employer’s] negligence!.]”). We note that some state and federal courts have determined that a violation of an OSHA regulation may constitute negligence per se. See, e.g., Pratico v. Portland Terminal Co., 783 F2d 255, 265-267 (IV) (1st Cir. 1985) (“[A] violation of an OSHA regulation can be considered negligence per se [when] there [is] an independent cause of action established by either state or federal law which establishes the right of an employee to be free from negligence, the duty of the employer to take reasonable precautions, and the liability of the employer for injuries caused by the failure to take reasonable precautions.”); see also John E Ludington, “Violation of OSHA regulation as affecting tort liability,” 79 ALR3d 962 (1977, updated weekly).

12 One witness testified that the nosings were “vinyl” and “slippery”; another testified that they were smooth vinyl; and Smith testified that they were smooth and not covered in slip-resistant material.

13 Smith testified that, if the nosing had been made of a different material, he would not have fallen “because the edging would’ve caught [his] boots.”

14 See, e.g., construction, in 29 CFR § 1910.12; shipyards, in 29 CFR § 1910.15; longshoring and marine terminals, in 29 CFR § 1910.16; paper mills, in 29 CFR § 1910.261; electric power plants, in 29 CFR § 1910.269; etc.); see also 29 CFR § 1910.5 (c) (providing for circumstances when a particular OSHA standard preempts a general standard); Brock v. Williams Enterprises, 832 F2d 567, 570 (II) (A) (11th Cir. 1987) (“A general standard setting forth measures that an employer must take to protect employees from a particular hazard is not preempted by a specific standard unless that specific standard addresses the same particular hazard as the general standard.”) (citation omitted).